Panelists: Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School Akhil Reed Amar, Southmayd Professor of Law, Yale Law School Anita Allen-Castellitto, Professor of Law and Philosophy, University of Pennsylvania Michael Stokes Paulsen, Briggs and Morgan Professor of Law, University of Minnesota Jed Rubenfeld, Robert R. Slaughter Professor of Law, Yale, Law School Jeffrey Rosen, Associate Professor of Law, George Washington University, Legal Affairs Editor, The New Republic Reva Siegel, Nicholas de Katzenbach Professor of Law, Yale Law School Mark V. Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Robin L. West, Professor of Law, Georgetown University

The Supreme Court decision in Roe v. Wade, which legalized abortion in all fifty states, marks its thirtieth anniversary this month. But in many ways the issues dealt with in Roe have never been settled.

The thirty-year-old case is frequently in the news, dragged into the drama of a new political season. For instance, the New York Times and other papers recently reported on efforts within Congress to pass laws restricting abortion, and eventually aimed at overturning Roe.

According to Jack Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, "Roe is an opinion that people have been continually attempting to rewrite almost since the time it was handed down."

Yale Law School has organized a daylong series of events on January 31 to commemorate the thirtieth anniversary of the Roe decision. In one panel running in the afternoon, titled "Roe v. Wade: Thirty Years Later," Balkin and eight other prominent legal scholars will literally rewrite Roe, by presenting their own opinions on the case, written without reference to any materials or events after January 22, 1973. It will be a sort of mock Supreme Court.

A panel beginning at 10:30 a.m., organized by Yale Law Women, will look at some of the practical repercussions of the Roe decision in the current political climate. It is titled "Practitioners' Perspectives: Thirty Years Later, Where Are We Now?"

Although the panelists on Balkin's mock Supreme Court will not make reference to current events, he says that the exercise is still informed by an awareness of the consequences of Roe. "Thirty years later it becomes clear exactly where the controversies are likely to lie," he points out. "In 1973, it was not clear what abortion politics would be organized around. It was not clear what the key issues would be." For instance, no justice in 1973 could have foreseen the debates over partial birth abortion and parental notification laws that have become prominent lately. So, the rewritten opinions will say a lot about the present.

A part of the exercise, though, grapples with the nearly timeless principles of the Constitution. As Balkin puts it, "You ask, are the materials of constitutional law adequate to produce Roe v. Wade or any opinion that would deal with the abortion question?"

The Roe decision found that state laws criminalizing abortion were unconstitutional because they intruded on a woman's legitimate right to privacy in deciding whether or not to bear a child. "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation," wrote Justice Harry A. Blackmun in his majority opinion published by the court. The court devised a trimester system, with the mother's right to privacy dominant in the first third of her pregnancy, and the state's interest in protecting the mother and the potential life of the fetus becoming more important in the second and third trimesters.

Every aspect of the decision will be reconsidered by Balkin's mock court--to be discarded or reaffirmed. However, unlike the real Supreme Court, the panelists will not be required to reach a consensus. "We do not expect everyone to join one opinion--everyone is supposed to do their own thing," says Balkin.

Disagreement over Roe has persisted over the last thirty years. The decision has been attacked and defended in lawsuits, as well as state and federal legislation. This controversy has become a key point of division in American politics. "The structure of American political debate was organized around belief in or objection to Roe v. Wade," says Balkin. For example, "Robert Bork would be sitting on the Supreme Court if it weren't for Roe v. Wade, and all of the Supreme Court nominations that occurred after Bork were made in the shadow of the dispute over Roe v. Wade."

This is not the first time Balkin has attempted to "rewrite" history. Two years ago, he gathered colleagues to offer their legal opinions on the Brown v. Board of Education decision, which will have its fiftieth anniversary in 2004. What Brown v. Board of Education Should Have Said, published by NYU Press in 2001, served as the model for the Roe exercise; the opinions submitted for the January 31 event will be included in a volume called What Roe v. Wade Should Have Said, also to be published by NYU Press.

Balkin points to a key difference between Roe and Brown, which helps explain why Roe is still such a prominent issue: Nearly everyone in the United States believes that Brown was correctly decided. Balkin mentions the recent resignation of Trent Lott as majority leader of the Senate as evidence that the principle of desegregation behind Brown is widely accepted. "Nobody has resigned from the Senate because they are pro-life," Balkin says. "Roe is still very much controversial."

And Balkin foresees the case influencing American law and society for a long time to come. "If we were to do this exercise twenty years from now, on the 50th anniversary, we would find that the key issues would be still different," he says. "Twenty years from now there will be cloning, and there will be all sorts of gene therapies, and there will be all sorts of designer babies, and the Roe v. Wade decision and its implications for the right to choose will clearly have an effect of the constitutionality of prohibitions and regulations on all of those practices."

The scholars on Balkin's panel were selected because they are prominent in the debate over Roe--both in favor of the decision and against it. They also each bring unique ideas about the Constitution to the discussion, and Balkin says "it's interesting to see how they apply their theories of constitutional interpretation in the context of Roe."

The morning panel organized by the Yale Law Women will complement Balkin's academic exercise by assessing where reproductive rights stand today and discussing how to overcome challenges to these rights. The speakers on this panel are all Yale Law School graduates who have litigated reproductive rights cases and advocated for abortion rights on the national, state, and local levels. Priscilla Smith '91 is the director of the domestic program of the Center for Reproductive Law and Policy; Betsy Cavendish '88 is the legal director and general counsel of the National Abortion and Reproductive Rights Action League; and Catherine Weiss '87 is the director of the ACLU Reproductive Freedom Project.

In all of the panels, there will be open discussion of this controversial case. Says Balkin, "I have a feeling that people will have strong views, and they will disagree with each other, and that will be to the good. I'm really looking forward to it."